Supreme Court could set precedent for navigating #MeToo cases through upcoming appeal

The Supreme Court’s consideration of the new-trial ruling in the death of Cindy Gladue could offer the bench a shot at setting a precedent for Canadian courts to navigate the tricky world of #MeToo cases, according to the lawyer for the Ontario trucker accused of killing Gladue.

“This is an interesting time to hear this case, because you have the intersection of the #MeToo movement with Canadian criminal law with respect to consent and sexual assault,” said Dino Bottos, the lawyer tasked with defending the man accused in Gladue’s death.

Gladue, a 36-year-old Indigenous woman and mother of three, was found dead in a motel bathtub in June 2011. She was working as a sex worker at the time and died from an 11-centimeter-long injury to her vaginal wall after what the accused, Bradley Barton, has since referred to as consensual rough sex.

Following Barton’s acquittal at the hands of a jury with no Indigenous members, the Alberta Court of Appeal ordered a second trial. They said serious errors were made during the trial, including a failure from the judge to properly instruct the jury about consent as it relates to sexual assault law.

“Regrettably, some jury instructions in this country have failed to keep pace with both statutory and jurisprudential changes in the content and application of the law on sexual offences,” read the Alberta Court of Appeal decision. “This undermines equal justice under law. The courts cannot permit this to go on. We must correct this. And we will.”

This is the logic the Supreme Court will wrestle with as they decide whether the Alberta Court of Appeal made the right call — whether the judge did, in fact, fail to instruct the jury on how consent works under Canadian law.

Consent has been a tricky issue for courts to grapple with. A Canadian judge made international headlines after asking the 19-year-old complainant in a 2014 rape trial why she didn’t keep her knees together. A different judge came under fire last year for stating “clearly, a drunk can consent” as he acquitted a Halifax taxi driver accused of sexually assaulting a female passenger. The passenger was so drunk she urinated herself and passed out in the cab.

Just a few months after the taxi driver’s acquittal, Justice Minister Jody Wilson-Raybould introduced Bill C-51 as an effort to clarify consent in the Criminal Code. While it tidies up a number of outdated and redundant parts of the Criminal Code, the bill also sets out to clarify that an unconscious person cannot consent to sexual activity.

Under existing laws, Statistics Canada found that just 12 per cent of sexual assaults reported by police led to a criminal conviction between 2009 and 2014. This is much lower than the 23 per cent conviction rate for physical assaults during the same period of time. Sexual assaults are also far more likely than criminal assaults to drop out of the justice system — 75 per cent of physical assaults end up in court, compared to just 49 per cent of sexual assaults.

It’s an issue that’s been thrust into the limelight as countless sexual assault victims have come forward with stories of sexual assault, many of which were never even reported to the police, using the hashtag #MeToo. The movement has rocked both Hollywood and the Hill resulting in investigations and resignations but so far, no convictions.

That’s something that might change if the definition of consent is clarified, which Bottos believes the Supreme Court will have a chance to do as they consider the new-trial ruling in the case of Cindy Gladue.

“The Supreme Court may want to weigh in on that and advise the courts below as well as the public what is and is not the law on consent and sexual activity. So it’s going to be, I think, a very important case for the law and as well for Canadian society, to have the Supreme Court weigh in on this,” said Bottos.

The Supreme Court’s oral hearing of the appeal will likely take place in either late 2018 or early 2019.